Kaku Singh and Others vs Kapur Singh and Others

D. Falshaw, C.J.—This is an appeal under Clause 10 of the Letters Patent against the order of a Single Judge accepting an execution appeal and ordering the Appellants to pay Rs. 4,491.88 nP. to the Respondents as compensation u/s 144. Civil Procedure Code.

The facts are that a decree for possession of certain land by pre-emption was passed on the 21st of June 1956 on payment of Rs. 20, 300/-. The balance of the sale price was deposited by the preemptors in Court within the time specified in the decree. The impugned sale had been in favour of a number 61 vendees, three of whom filed a regular first appeal in the Pepsu High Court. The right of pre-emption of the Plaintiffs had been based merely on the ground of ownership in the estate were the land a suit was situated, and during the pendency of the appeal as the result of the enactment of Punjab Act No. X of 1960 this ground of preemption was abolished. The vendees appeal was accordingly accepted by the High Court on the 4th of August 1960 and the Plaintiffs'' suit was dismissed.

It does not appear that the vendee-Appellants had obtained any order for stay of execution when they filed the appeal in the High Court and the decree-holders accordingly obtained possession of part of the land on which there were no crop standing on the 10th of September 1956, and they also got possession of the remainder of the land on the 21st of September 1956. A belated stay order was obtained from the High Court on the 20th of September 1936, but this order had not been communicated when possession of the second instalment of the land was obtained. However by a order of the District Judge, Patiala, possession of the land taken on the 21st of September 1950 was restored to the vendees, but the possession of the remaining land, amounting to three-quarters of the whole, remained with the preemptors until after the decision of the appeal in this Court.

After the dismissal of the pre-emption suit to appeal the vendees applied to the executing Court u/s 144, CPC for mesne profits with regard to the area of land which had remained in possession of the preemptors from September 1956 to the 11th of January 1961, claiming Rs. 12,000/- on this account.

The application was resisted by the preemptors and it was held by the executing Court that since the preemptors had been in possession of the land under a decree which was lawful at the time when it was passed, there could be no question of mesne profits, but the vendees were entitled to damages or compensation which was Assessed at one-third of the total produce of three-quarters of the land in suit. From the evidence the learned Subordinate Judge held that the total produce from the land during the period in question was valued at Rs. 17,954.49 nP. and he further calculated that the amount to which the vendees would be entitled on the above basis was Rs. 4,491.88 nP. At the same time lie held that the vendees could not claim this amount on account of the fact that the sum of Rs. 20,800 deposited by the preemptors had remained locked up in Court for the period from the 21st of August 1950 to the 4th of August 1960, when the pre-emptor at lost became entitled to withdraw it on the dismissal of this, suit, and interest on this amount calculated at 8% per annum would exceed the amount of compensation calculated as above.

The learned Single Judge disagreed with the view of the executing Court that the fact that the preemptors money had remained locked up in Court during this period debarred the vendees from the right to claim compensation to which they were otherwise entitled. He was of the view that the fact that the preemptors had lost interest on the money during the period in question made no difference, since the vendees also had not derived any benefit from it, their position throughout being merely that they wanted their land back and did not want the Plaintiffs'' money. He accordingly ordered the payment of Rs. 4,491.88 nP. by the preemptors to the vendees.

There does not appear to bo any decided case which is directly applicable to the facts of this case. The case chiefly relied on by the learned Counsel for the Appellants is Dalu Ram Gobar-dhan Das v. Rjvmanand Jurimull AIR 1929 Pat 893, a decision of Fazl All and Chatterji, JJ. The facts in treat case were that a Plaintiff obtained a decree for damages for breach of contract for Rs. 4,850/- with interest at 6 per annum and costs. The Defendant appealed and when the successful Plaintiff proceeded to execute his decree obtained an order from the High Court staying execution on the judgment-debtor''s furnishing cash security to the extent of the decretal amount including costs and interest. The necessary amount was deposited in Court on the 14th of March 1924 and it was withdrawn by the decree-holder after furnishing adequate security for restoration on the 11th of December 1924.

The Defendant''s appeal in the High Court was successful and thereafter he applied for restitution, claiming not merely the refund of the amount actually deposited by him, but also interest from the date of the deposit, the 14th of March 1924.

The main point in dispute before the learned Judges was whether interest was to be allowed on the amount refunded from the date of the deposit or from the date of the withdrawal by the decree-holder, namely the 11th of December 1924. The case of Hirabhai Dahyabhai Vs. Maneklal Ranchhod, , was relied on as an authority for the proposition that a party could not resist a claim for interest on the ground that it had acquired no benefit from the money during the period when it was lying in Court. In the course of the judgment it was observed:

The definition of the expression ''mesne profits'' in the Civil Procedure Code, Section 2, Sub-section (12), also throws some light in a case like this. It provides that ''mesne profits'' mean the profits which the person in wrongful possession of the property actually received or might with ordinary diligence have received together with interest on such profits. Therefore the fact that the decree-holder did not withdraw the deposit is immaterial. If he could with ordinary diligence have received the amount, there is no reason why he would not be liable to pay interest to the party who was by reason of his action deprived of the benefit of his money.

It was accordingly held that the Defendant was entitled to interest from the date when the decretal amount was deposited in Court.

With respect I agree with the view that if the money is deposited in Court for the withdrawal by the opposite party, it makes no difference as regards the right of the party making the deposit to claim interest on restitution whether the other party withdraws the amount or leaves it lying in Court It seems therefore that in the present case the crux of the matter is whether during the pendency of the appeal against the pre-emption decree by some of the vendees they could, after the preemptors had obtained possession of the land in execution of their decree, have withdrawn the money and enjoyed the use of it up to the time when their appeal was accepted without losing their right to pursue the appeal. On this point there appears to be no doubt that the vendees could have withdrawn the amount deposited without becoming estopped from pursuing the appeal. This matter was considered in Iftikhar Ali v. Thakar Singh 83 Pun Re 1912, a decision by Rattigan and Shah Din JJ� who held that the fact that the vendee had withdrawn the money paid into the lower appellate Court under its decree by the pre-emptor did not debar the vendee from appealing against that decree. The same point arose before Tek Chand J. in Mehdi v. Mt. Nadran AIR 1920 Lah 137, in which the earlier decision was followed, and also the decision in Mt. Qudrat-Un-Nissa Bibi Vs. Abdul Rashid and Another In thai case Sulaiman and Banerji. JJ. approved of His decision in Iftikhar Ali''s case, 83 Pun Re 1912.

It seems to me in low-so circumstances that since the vendees could have withdrawn the sum of Rs. 20,300/- and enjoyed the use of it until their appeal was accepted without in any way prejudicing the success of their appeal, and the interest on this amount at 0% per annum would have exceeded the amount calculated as compensation for the land occupied by the preemptors during the same period, the correctness of which is not now contested; the view of the executing Court was correct, and no amount should have been allowed as compensation for the occupation of the land during the period in question. The result is that. I would accept the appeal and restore the order of the executing Court. The parties may however, be left to bear their own costs.

Harbans Singh, J.

I agree.